# UNION OF INDIA AND ORS v. MUDRIKA SINGH

- **Citation:** [2021] 11 S.C.R. 1106
- **Court:** Supreme Court of India
- **Decided:** 2021-12-03
- **Case number:** Civil Appeal No. 6859 of 2021
- **Bench:** Dr. Dhananjaya Y Chandrachud, A.S. Bopanna
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/union-of-india-and-ors-v-mudrika-singh-34741
- **Pages:** 32

## Headnote

Border Security Force Act, 1968 - s.24(a) - BSF Rules 1969
- Unamended r.51 and amended r.51 (amendement in 2011) -
Disgraceful conduct - Punishment under - The incident in question
is alleged to have taken place on the night intervening 16 and 17
April 2006 - The complainant, a Constable in the BSF, was on Naka
duty between 02:00 to 06:00 hours when the respondent-Head
Constable is alleged to have committed an act of sexual assault on
him - Record of Evidence (RoE) was submitted to the Commandant
- The Commandant noted that there was an inconsistency in the
statements of the witnesses as regards the date on which the incident
had occurred - The Commandant called for the preparation of an
additional RoE - Summary Security Force Court (SSFC) found
respondent guilty and demoted him to the rank of a Constable as a
punishment - The Appellate Authority-the Director-General of BSF
commuted the sentence of reduction to the rank of Constable by
substituting it with the following: (i) To forfeit 05 years services for
the purpose of promotion; (ii) To forfeit 07 years past service for
the purpose of pension; and (iii) To be severely reprimanded - A
writ petition was filed by the respondent before the High Court,
which was allowed and order of the punishment was set aside -
Before the Supreme Court, two questions of law were raised: (i)
whether the Commandant has the jurisdiction to direct preparation
of an additional RoE; and (ii) whether the SSFC is under an
obligation to record reasons under Rule 159 of the BSF Rules 1969
when it determines the guilt of an accused - Held: The unamended
sub-rule (2) of Rule 51, as was applicable to the facts of the present
case, cannot be construed to impose a prohibition on the
Commandant to seek clarification, and for that purpose of ordering
an additional RoE, to facilitate or aid the further processing of the
case - Rule 51(2) does not contain any such prohibition - On the
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contrary, sub-rule(1) to Rule 48 indicates that the officer ordering
the RoE may either prepare an RoE himself or detail another officer
to do so - Sub-rule(4) to Rule 48 empowers the officer to ask any
question that may be necessary to clarify the evidence - If such a
power is conferred upon the officer ordering the RoE while preparing
the RoE himself, it would follow by necessary implication, that such
a power is available to the Commandant even when the RoE is
ordered to be prepared by another officer - The mere fact that a
specific provision empowering the Commandant to call for further
evidence was introduced in 2011 cannot result in the conclusion
that absent such a power being expressly incorporated, the power
did not vest in the Commandant - As far as obligation of SSFC to
record reasons is concerned, Rule 149 does not either expressly or
by necessary implication impose a mandate on the SSFC to record
reasons when it renders its findings of guilt on a case referred to it
- Thus, the punishment which was imposed on the respondent is in
compliance with clauses (a) to (g) of s.48(1).
BSF Rules 1969 - Unamended r.51 and amended r.51
(amendement in 2011) - Effect of amendment in r.51 - Clarificatory
nature - The complainant, a Constable in the BSF, was on Naka
duty between 02:00 to 06:00 hours on the night intervening 16 and
17 April 2006 when the respondent-Head Constable is alleged to
have committed an act of sexual assault on him - Record of Evidence
(RoE) was submitted to the Commandant - The Commandant noted
that there was an inconsistency in the statements of the witnesses as
regards the date on which the incident had occurred and ordered
an additional RoE - Whether the commandant prior to the
amendment of r.51 in 2011 had jurisdiction to direct preparation of
an additional RoE - Held: When an amendment is purely clarificatory
or declaratory in nature, it is deemed to operate retrospectively -
The fact that the incident took place in the present case prior to the
date of the amendment, i.e., 25.11.2

## Text

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[2021] 11 S.C.R.
[2021] 11 S.C.R. 1106
1106
UNION OF INDIA AND ORS.
v.
MUDRIKA SINGH
(Civil Appeal No. 6859 of 2021)
DECEMBER 03, 2021
[DR. DHANANJAYA Y CHANDRACHUD AND
A.S. BOPANNA, JJ.]
Border Security Force Act, 1968 - s.24(a) - BSF Rules 1969
- Unamended r.51 and amended r.51 (amendement in 2011) -
Disgraceful conduct - Punishment under - The incident in question
is alleged to have taken place on the night intervening 16 and 17
April 2006 - The complainant, a Constable in the BSF, was on Naka
duty between 02:00 to 06:00 hours when the respondent-Head
Constable is alleged to have committed an act of sexual assault on
him - Record of Evidence (RoE) was submitted to the Commandant
- The Commandant noted that there was an inconsistency in the
statements of the witnesses as regards the date on which the incident
had occurred - The Commandant called for the preparation of an
additional RoE - Summary Security Force Court (SSFC) found
respondent guilty and demoted him to the rank of a Constable as a
punishment - The Appellate Authority-the Director-General of BSF
commuted the sentence of reduction to the rank of Constable by
substituting it with the following: (i) To forfeit 05 years services for
the purpose of promotion; (ii) To forfeit 07 years past service for
the purpose of pension; and (iii) To be severely reprimanded - A
writ petition was filed by the respondent before the High Court,
which was allowed and order of the punishment was set aside -
Before the Supreme Court, two questions of law were raised: (i)
whether the Commandant has the jurisdiction to direct preparation
of an additional RoE; and (ii) whether the SSFC is under an
obligation to record reasons under Rule 159 of the BSF Rules 1969
when it determines the guilt of an accused - Held: The unamended
sub-rule (2) of Rule 51, as was applicable to the facts of the present
case, cannot be construed to impose a prohibition on the
Commandant to seek clarification, and for that purpose of ordering
an additional RoE, to facilitate or aid the further processing of the
case - Rule 51(2) does not contain any such prohibition - On the
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contrary, sub-rule(1) to Rule 48 indicates that the officer ordering
the RoE may either prepare an RoE himself or detail another officer
to do so - Sub-rule(4) to Rule 48 empowers the officer to ask any
question that may be necessary to clarify the evidence - If such a
power is conferred upon the officer ordering the RoE while preparing
the RoE himself, it would follow by necessary implication, that such
a power is available to the Commandant even when the RoE is
ordered to be prepared by another officer - The mere fact that a
specific provision empowering the Commandant to call for further
evidence was introduced in 2011 cannot result in the conclusion
that absent such a power being expressly incorporated, the power
did not vest in the Commandant - As far as obligation of SSFC to
record reasons is concerned, Rule 149 does not either expressly or
by necessary implication impose a mandate on the SSFC to record
reasons when it renders its findings of guilt on a case referred to it
- Thus, the punishment which was imposed on the respondent is in
compliance with clauses (a) to (g) of s.48(1).
BSF Rules 1969 - Unamended r.51 and amended r.51
(amendement in 2011) - Effect of amendment in r.51 - Clarificatory
nature - The complainant, a Constable in the BSF, was on Naka
duty between 02:00 to 06:00 hours on the night intervening 16 and
17 April 2006 when the respondent-Head Constable is alleged to
have committed an act of sexual assault on him - Record of Evidence
(RoE) was submitted to the Commandant - The Commandant noted
that there was an inconsistency in the statements of the witnesses as
regards the date on which the incident had occurred and ordered
an additional RoE - Whether the commandant prior to the
amendment of r.51 in 2011 had jurisdiction to direct preparation of
an additional RoE - Held: When an amendment is purely clarificatory
or declaratory in nature, it is deemed to operate retrospectively -
The fact that the incident took place in the present case prior to the
date of the amendment, i.e., 25.11.2011, would make no difference
once the amendment, in the true sense of the expression, is construed
to be clarificatory in nature - Against this backdrop, the
Commandant was acting within his jurisdiction in ordering an
additional RoE to clarify the date of the incident.
Interpretation of Statutes - Amendment to a statute -
Clarificatory nature - Held: An amendment to a statute or to statutory
rules may often be clarificatory in nature - It is clarificatory in the
UNION OF INDIA AND ORS. v. MUDRIKA SINGH
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sense that it expressly recognizes a power that already vests in the
authority - In those circumstances, when an amendment is purely
clarificatory or declaratory in nature, it is deemed to operate
retrospectively.
Service Law - Highlighting a rising trend of invalidation of
proceedings inquiring into sexual misconduct, on hyper-technical
interpretations of the applicable service rules - Discussed.
Disposing of the appeal, the Court
HELD: 1. Jurisdiction of the Commandant
1.1 The unamended sub-rule (2) of Rule 51 of BSF Rules
1969, as was applicable to the facts of the present case, cannot
be construed to impose a prohibition on the Commandant to seek
clarification, and for that purpose of ordering an additional RoE,
to facilitate or aid the further processing of the case. Rule 51(2)
does not contain any such prohibition. On the contrary, sub-rule(1)
to Rule 48 indicates that the officer ordering the RoE may either
prepare an RoE himself or detail another officer to do so. Subrule(4) to Rule 48 empowers the officer to ask any question that
may be necessary to clarify the evidence. If such a power is
conferred upon the officer ordering the RoE while preparing the
RoE himself, it would follow by necessary implication, that such a
power is available to the Commandant even when the RoE is
ordered to be prepared by another officer. The purpose of seeking
such a clarification is to facilitate the emergence of the truth as
regards the genesis of an incident which is the subject matter of
the enquiry. The mere fact that a specific provision empowering
the Commandant to call for further evidence was introduced in
2011 cannot result in the conclusion that absent such a power
being expressly incorporated, the power did not vest in the
Commandant. [Para 20][1122-G-H; 1123-A-C]
1.2 An amendment to a statute or to statutory rules may
often be clarificatory in nature. It is clarificatory in the sense that
it expressly recognizes a power that already vests in the authority.
In those circumstances, when an amendment is purely clarificatory
or declaratory in nature, it is deemed to operate retrospectively.
[Para 21][1123-C-D]
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1.3 This Court has often recognized amendments to service
rules as clarificatory in nature, thereby having a retrospective
operation. In our view, the power to order additional RoE is
incidental to realize the purpose of Rules 48 and 51. In any event,
residual powers under Rule 6 would protect this action. Since
the express power to direct additional RoE under Rule 51 was
incidental to the exercise of the existing powers, the amendment
to Rule 51 which was brought in 2011 must be construed to be
clarificatory. In fact, the High Court proceeded on this line of
analysis by observing that the amendment is clarificatory.
However, it chose to not take it to its logical conclusion on
the tenuous ground that no submission had been put forth by
either side to throw light on the relevant provision. [Para 22]
[1125-B-D]
1.4 The fact that the incident took place in the present case
prior to the date of the amendment, i.e., 25 November 2011, would
make no difference once the amendment, in the true sense of
the expression, is construed to be clarificatory in nature. Against
this backdrop, the Commandant was acting within his jurisdiction
in ordering an additional RoE to clarify the date of the incident.
As this is not a case of insufficient evidence. During the course
of the RoE, the respondent himself stood by the complainant's
version of the date and time on which the alleged incident took
place, which was the night when the respondent was detailed to
Naka duty as Head Constable. The only issue for which additional
RoE was warranted was in regard to the confusion in regard to
the precise date on which the incident took place, considering
the confusion caused by the incident having occurred on the
intervening night of 16 and 17 April 2006. Save and except for
this, the RoE which was prepared initially was comprehensive in
nature and contained all necessary details of the incident,
which were sufficient to sustain the final conclusion.
[Para 23][1125-D-G]
2. Recording of reasons
2.1 The decision in Dinesh Kumar which is based upon the
view of the Constitution Bench in S N Mukherjee and Som Datt
Dutta provides a clear answer and negates the finding of the High
Court on the mandate of recording reasons by the SSFC when
UNION OF INDIA AND ORS. v. MUDRIKA SINGH
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delivering its finding under Rule 149. Rule 149 does not either
expressly or by necessary implication impose a mandate on the
SSFC to record reasons when it renders its findings of guilt on a
case referred to it. [Para 29][1134-E-G]
S N Mukherjee v. Union of India (1990) 4 SCC 594 :
[1990] 1 Suppl. SCR 44 - followed.
Shyam Sunder v. Ram Kumar (2001) 8 SCC 24:[2001]
1 Suppl. SCR 115; Zile Singh v. State of Haryana (2004)
8 SCC 1: [2004] 5 Suppl. SCR 272; Union of India v.
Dinesh Kumar (2010) 3 SCC 161: [2010] 2 SCR 830;
Som Datt Datta v. Union of India AIR 1969 SC 414 :
[1969] SCR 177 - relied on.
S B Bhattacharjee v. S D Majumdar, (2007) 10 SCC
513 : [2007] 6 SCR 743; O P Lather v. Satish Kumar
Kakkar, (2001) 3 SCC 110 : [2001] 1 SCR 827; Union
of India v. Dinesh Kumar (2010) 3 SCC 161: [2010] 2
SCR 830 - referred to.
Case Law Reference
[2010] 2 SCR 830
referred to
Para 9(viii)
[2001] 1 Suppl. SCR 115
relied on
Para 21
[2004] 5 Suppl. SCR 272
relied on
Para 21
[2007] 6 SCR 743
referred to
Para 22
[2001] 1 SCR 827
referred to
Para 22
[2010] 2 SCR 830
relied on
Para 25
[1990] 1 Suppl. SCR 44
followed
Para 26
[1969] SCR 177
relied on
Para 26
CIVIL APPELLATE JURISDICTION: Civil Appeal No.6859 of
2021.
From the Judgment and Order dated 18.12.2018 of the High Court
of Calcutta in FMA No.859 of 2010.
Ms. Madhavi Divan, ASG, Ms. Swarupama Chaturvedi, Satya
Lipsu Ray, Ms. Deepanwita Priyanka, Manish, Ms. Vaishali Verma, A.
K. Sharma, Advs. for the Appellants.
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Rabin Majumder, Ms. Mousumi Roy, Joydeep Mukherjee, Ms.
Akansha Srivastava, Nand Ram, Advs. for the Respondent.
The Judgment of the Court was delivered by
DR. DHANANJAYA Y CHANDRACHUD, J.
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Introduction.................................................................3
B
Submissions................................................................7
C
Analysis....................................................................10
C.1
Jurisdiction of the Commandant............................13
C.2
Recording of reasons...........................................23
D
Conclusion................................................................31
A Introduction
1. The Union of India and officials of the Border Security Force1
are in appeal against a judgment of a Division Bench of the Calcutta
High Court dated 18 December 2018 which quashed disciplinary
proceedings against the respondent and reinstated him to his initial position
in the BSF.
2. In April 2006, at the time of the alleged misconduct, the
respondent was a Head Constable in the BSF and was deployed to the
Seventy-second Battalion. On 2 May 2006, the Commandant directed
the Deputy Commandant to prepare a record of evidence2 against the
respondent for an offence constituting "disgraceful conduct" under
Section 24(a) of the Border Security Force Act 19683. The specific
allegation, as set out in the order, was as follows:
"DISGRACEFUL CONDUCT OF AN UNNATURAL KIND
In that he, between 0200 Hrs to 0600 Hrs on 16.04.2006 while on
Naka duty under BOP Sahab Khan committed sodomy on the
person of No. [xyz] Const [xyz] of the sam(e) Battalion."
3. The incident in question is alleged to have taken place on the
night intervening 16 and 17 April 2006. The complainant, a Constable in
UNION OF INDIA AND ORS. v. MUDRIKA SINGH
* The Index is as per the Original Judgment.
1 "BSF"
2 "RoE"
3 "BSF Act 1968"
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the BSF, was on Naka duty between 02:00 to 06:00 hours when the
respondent is alleged to have committed an act of sexual assault on him.
The complainant submitted a written complaint on 19 April 2006. Under
the BSF Act 1968, such conduct is liable to be prosecuted under Section
24(a) which reads as follows:
"24.Certain forms of disgraceful conduct.-Any person
subject to this Act who commits any of the following offences,
that is to say,-
(a) is guilty of any disgraceful conduct of a cruel, indecent or
unnatural kind; or
[...]
shall, on conviction by a Security Force Court, be liable to suffer
imprisonment for a term which may extend to seven years or
such less punishment as is in this Act mentioned."
4. The RoE was prepared by the Deputy Commandant and
submitted to the Commandant. On 10 June 2006, the Commandant noted
that on a scrutiny of the RoE proceedings, it was found that there was
an inconsistency in the statements of the witnesses as regards the date
on which the incident had occurred. Hence, on 10 June 2006, the
Commandant called for the preparation of an additional RoE. Following
the receipt of the additional RoE, the Commandant issued an order to
convene a Summary Security Force Court4 to try the respondent. In the
course of the evidence which was recorded pursuant to the direction of
the Commandant seeking an additional RoE, the complainant stated that
the incident took place on 17 April 2006. The respondent was provided
with copies of the RoE, additional RoE and the charge sheet on 3 August
2006.
5. On 7 August 2006, the SSFC convened at the Headquarters of
the seventy-second Battalion of the BSF, at Narayanpur, Malda (West
Bengal) for enquiring into the charge under Section 24(a) the BSF Act
1968. The respondent pleaded not guilty to the charge. Four prosecution
witnesses were examined and the respondent was furnished with an
opportunity to cross-examine them and to call for defence witnesses.
The SSFC found the respondent guilty of the charge and demoted him to
the rank of a Constable as a punishment.
4 "SSFC"
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6. On 6 September 2006, the respondent filed a statutory petition
under Section 1175 of the BSF Act 1968 before the Director-General of
the BSF to challenge the conviction recorded by the SSFC on 7 August
2006. The statutory petition was heard by the appellate authority - the
Director-General of BSF and was disposed of by an order dated 18
October 2006. While the charge against the respondent was found to
have been established, the punishment of reduction to the rank of
Constable was commuted, having regard to the fact that the respondent
had over 22 years of unblemished service with 21 rewards to his credit.
The respondent was informed that the Director-General of the BSF had
commuted the sentence of reduction to the rank of Constable by
substituting it with the following:
"(i) 'To forfeit 05 years services for the purpose of promotion';
(ii) 'To forfeit 07 years past service for the purpose of pension';
and
(iii) 'To be severely reprimanded."
7. The respondent moved the High Court at Calcutta under Article
226 of the Constitution. A Single Judge of the High Court, by an order
dated 7 May 2009, set aside the order of punishment on the ground that:
(i)
The original RoE was insufficient to prove the charge; and
(ii)
The order of the Commandant for preparing an additional
RoE was beyond jurisdiction.
8. The judgment of the Single Judge has been upheld by the
impugned judgment of the Division Bench of the High Court on 18
October 2018 on the ground that:
UNION OF INDIA AND ORS. v. MUDRIKA SINGH
[DR. DHANANJAYA Y CHANDRACHUD, J.]
5 "117. Remedy against order, finding or sentence of Security Force Court.-(1)
Any person subject to this Act who considers himself aggrieved by any order passed
by any Security Force Court may present a petition to the officer or authority empowered
to confirm any finding or sentence of such Security Force Court, and the confirming
authority may take such steps as may be considered necessary to satisfy itself as to the
correctness, legality or propriety of the order passed or as to the regularity of any
proceeding to which the order relates.
(2) Any person subject to this Act who considers himself aggrieved by a finding or
sentence of any Security Force Court which has been confirmed, may present a petition
to the Central Government, the Director-General, or any prescribed officer superior in
command to the one who confirmed such finding or sentence, and the Central Government,
the Director-General, or the prescribed officer, as the case may be, may pass such order
thereon as it or he thinks fit."
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(i)
The Commandant did not have jurisdiction to direct the
preparation of an additional RoE under Rule 51 of the Border
Security Force Rules 19696 as it stood at the relevant time;
and
(ii)
No reasons were furnished by the SSFC or the Appellate
Authority - Director General of BSF - for holding the
respondent guilty.
B Submissions
9. Ms Madhavi Divan, Additional Solicitor General appearing on
behalf of the appellants has urged the following submissions:
(i)
The High Court has taken a hyper-technical view of the
matter and has failed to appreciate that the provisions of
the BSF Act 1968 and BSF Rules 1969 are robust enough
to cover the present case;
(ii)
The Commandant directed the preparation of an additional
RoE by his order dated 10 June 2006. It is evident from a
reading of the original RoE and additional RoE that this is
not a case of "insufficient evidence" as envisaged under
Rule 59 of the BSF Rules 1969, but a case of "clarificatory
evidence";
(iii)
In a minor inaccuracy, the complainant had stated that the
incident took place on 16 April 2006 when he was detailed
to Naka duty, whereas the incident actually took place on
the intervening night of 16 April 2006 and 17 April 2006. It
was this inaccuracy which was sought to be corrected in
the additional RoE;
(iv)
There is no provision under the statute or under the rules
prohibiting the Commandant from directing the recording
of additional evidence;
(v)
In 2011, Rule 51 was amended by the insertion of clause
(2) under which an express power has been conferred on
the Commandant to direct the recording of further evidence.
This provision is clarificatory in nature;
(vi)
In any event, Rule 6 is wide enough to cover any alleged
limitation in Rule 51. Rule 6 provides:
6 "BSF Rules 1969"
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"6. Case unprovided for. - In regard to any matter not specifically
provided for in these rules, it shall be lawful for the competent
authority to do such thing or take such action as may be just and
proper in the circumstances of the case."
(vii)
The conclusion of the High Court that the Commandant did
not possess the authority to order the recording of additional
evidence and that he had usurped the power of the superior
authority under Rule 59, is perverse; and
(viii) Neither the provisions of Rule 149 nor those of Section
117(2) require the SSFC or the Director-General to give
reasons in support of their decision. This principle is settled
by the judgment of this Court in Union of India v. Dinesh
Kumar7.
10. On the other hand, Mr Rabin Majumder appearing on behalf
of the respondent has urged the following submissions:
(i)
Rule 6 of the BSF Rules 1969 applies only to a matter which
is not specifically provided in the Rules. On the contrary,
Rule 51 specifically enunciates the power of the
Commandant. In the absence of specific conferment of
power to order the preparation of an additional RoE at the
material time, the Commandant had no power to do so;
(ii)
The power to record further evidence is conferred only on
a superior authority convening a Court under Rule 59;
(iii)
Where a Commandant decides under Rule 51(2)(iv) to apply
to a competent officer to convene a court for the trial of a
person, only such officer or authority can exercise any of
the powers provided in Rule 59 which includes returning
the case for recording further evidence, if the evidence on
record is insufficient;
(iv)
As a result of the order of the Commandant, the evidence
of the same witnesses was recorded twice over and without
the authority of law. In the process of doing so, the
Commandant usurped the power of the superior officer or
authority who exercises specific powers under Rule 59;
UNION OF INDIA AND ORS. v. MUDRIKA SINGH
[DR. DHANANJAYA Y CHANDRACHUD, J.]
7 (2010) 3 SCC 161
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(v)
The SSFC has not recorded any reason to support the
conclusion that the charge against the respondent was
proved;
(vi)
The facts of the case would indicate that:
(a)
The RoE prepared by the officer detailed by the
Commandant by his order dated 2 May 2006 was
insufficient to prove the charge;
(b)
The preparation of the additional RoE was ordered
to furnish the prosecution witnesses who had already
been examined, cross-examined and re-examined -
with a second chance to prove the charge; and
(c)
The authority which decided the statutory petition
under Section 117 has not found that the RoE
prepared in accordance with the order of the
Commandant dated 2 May 2006 was insufficient to
prove the charge;
(vii)
The decision of the SSFC is vitiated by incurable illegality,
since the order passed on the basis of additional RoE
prepared in terms of Commandant's order dated 10 June
2006 was without jurisdiction;
(viii) The Division Bench of the High Court was justified in holding
that the SSFC is required to furnish a modicum of reasons
in support of its conclusion of guilt, and some application of
mind must be demonstrated. Rule 151 requires reasons to
be furnished for awarding the sentence when a finding of
guilt is returned. A range of sentences has been prescribed
and reasons to support the order of a particular sentence is
necessary; and
(ix)
The High Court was justified in holding that the finding of
guilt cannot be based on an ipse dixit order of the superior
officers. Unless the ultimate decision is informed by reason,
it will fall foul of Article 14 of the Constitution.
11. The rival submissions will now be analysed.
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C Analysis
12. Essentially, down to its core, the controversy in the present
case turns upon two aspects: firstly, whether the Commandant prior to
the amendment of Rule 51 in 2011 had jurisdiction to direct the preparation
of an additional RoE; and secondly, whether the finding of guilt which
has been recorded by the SSFC stands vitiated in the absence of reasons.
Now, before we analyse the first of the above two facets, it becomes
necessary to understand the circumstances in which the Commandant
directed the Assistant Commandant to prepare an additional RoE on 10
June 2006.
13. On 2 May 2006, the Deputy Commandant of the Seventysecond Battalion was detailed to prepare a RoE on the allegation that
the respondent had committed an offence under Section 24(a) of the
BSF Act 1968. The allegation was that when he was on Naka duty from
02:00 hours to 06:00 hours on 16 April 2006, the respondent had committed
an act of sexual assault on a Constable. In the course of preparing the
RoE, the complainant, examined as PW1, reported that:
"I joined 72 BN BSF on 19 Feb 2006 and further posted to B-Coy
of Unit B-Coy is deployed in Sahebkhale Sub-Sector. I went to
BOP Sahebkhali on 03 April 06 and afterward had been performing
duty in BOP Sahebkhali. I was on Naka/Patrolling duty from
0200Hrs to 0600 Hrs on 16 April 06 alongwith No.84001083 HC
Mudrika Singh. At 0400Hrs on 16 April 06 while both of us were
sitting on OP Machan (OP No.2) HC Mudrika Singh caught my
Penis. HC Mudrika Singh bounded me to undergo sex with him
by force. Which incident I reported to Coy Commder on same
day at 0800 hrs. But I did not do sex with him."
Besides the complainant, the evidence included the statement of
PW2, who produced an extract of the General Duty Register on 17
April 2006. PW2 deposed that the respondent and the complainant left
for patrolling at 01:50 hours on 17 April 2006 and returned at 06:25 hours
on 17 April 2006.
14. PW2's evidence demonstrates that there was an evident error
in PW1's reference to 16 April 2006. The incident took place in the night
which intervened 16 and 17 April 2006, i.e.,in the early hours of 17 April
2006. It was in this backdrop, that on 10 June 2006, the Commandant
ordered the Assistant Commandment to prepare an additional RoE so as
UNION OF INDIA AND ORS. v. MUDRIKA SINGH
[DR. DHANANJAYA Y CHANDRACHUD, J.]
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to clarify the date on which the incident had occurred. Significantly,
after the SSFC's order dated 7 August 2006 by which the respondent's
rank was reduced to that of a Constable, in the course of his statutory
petition he clearly stated that:
"That I was charged with false allegation that at about 4.00 hrs
on 17th April, 2006 while on Nake duty in AOR of BOP Sahebkhali
I caught hold of the Penis of No. [xyz] constable [xyz] of the
same Unit."
The defence of the respondent was that:
"That I categorically say that because constable [xyz] was lying
or Machan on 17.4.2006 at about 04.50 hrs. and was sleeping I
awoke him and told him to keep watch upon the weapons and
sets otherwise there can be stolen and I further told him that if he
sleeps during duty hours then I would report (sic) him to the (sic)
Commandant. I say that because I gave the warning to [xyz] for
his negligence in duty he made false allegation against me for
taking revenge."
The above extract would make it abundantly clear that there was
no ambiguity, insofar as the respondent is concerned that the alleged
conduct with which he was charged, had taken place in the early hours
of 17 April 2006. As a matter of fact, the defence of the respondent also
pertains to the same incident on 17 April 2006 and the respondent
contended that the complainant had levelled a false allegation upon being
found to be sleeping while on duty.
15. In this backdrop, it becomes necessary to emphasize that the
additional RoE which was ordered by the Commandant was essentially
in the nature of a clarification having regard to the discrepancy about
the date of the incident namely, whether it was on 16 or 17 April 2006.
This was evidently because the incident took place on the intervening
night of 16 and 17 April. As noted above, the respondent himself has in
the course of his statutory petition, sought to highlight the events which
had transpired in the early hours of 17 April 2006 when he was on duty.
After settling the issue of insufficiency of evidence, we advert to the
two questions of law that have been raised in the appeal: (i) whether the
Commandant has the jurisdiction to direct preparation of an additional
RoE; and (ii) whether the SSFC is under an obligation to record reasons
under Rule 159 of the BSF Rules 1969 when it determines the guilt of an
accused.
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C.1 Jurisdiction of the Commandant
16. The unamended Rule 51 of the BSF Rules 1969 provided as
follows:
"51. Disposal of case against an enrolled person by
Commandant after record or abstract of evidence.-
(1) Where an officer has been detailed to prepare the record of
evidence or to make an abstract thereof, he shall forward the
same to the Commandant.
(2) The Commandant may, after going through the record or
abstract of evidence including additional evidence:
(i)
Dismiss the charge, or
(ii)
rehear the charge and award one of the summary
punishments; or
(iii)
try the accused by a Summary Security Force Court
where he is empowered so to do, or
(iv)
apply to a competent officer or authority to convene
a Court for the trial of the accused."
Under sub-rule (1) of Rule 51, an officer who is detailed to prepare
the RoE has to forward it to the Commandant8. Thereafter under Rule
51 (2), the Commandant may, after going through the record, proceed
with any of the course of actions detailed in (i) to (iv), which includes
trying the accused by an SSFC. The High Court has noticed that as a
result of the amendment in 20119, what is previously included in Rule
51(2) has been, in substance, incorporated in Rule 51(3) of the amended
BSF Rules 1969. A new sub-rule (2) has been introduced which reads
as follows:
"(2) if the Commandant considers the evidence recorded
insufficient but considers that further evidence may be available,
he may remand the case for recording additional evidence."
UNION OF INDIA AND ORS. v. MUDRIKA SINGH
[DR. DHANANJAYA Y CHANDRACHUD, J.]
8 Section 2(1)(f) of the BSF Act 1968 defines it thus: "2. (1)(f) 'Commandant', when
used in any provision of this Act with reference to any unit of the Force, means the
officer whose duty it is under the rules to discharge with respect to that unit, the
functions of a Commandant in regard to matters of the description referred to in that
provision"
9 S.O. 2628(E) on 25 November 2011
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The amended Rule 51 of the BSF Rules 1969 thus provides for
the following:
"51. Disposal of case against enrolled person by Commandant
after record or abstract of evidence.-
(1) Where an officer has been detailed to prepare the record of
evidence or to make an abstract thereof, he shall forward the
same to the Commandant.
(2) If the Commandant considers the evidence recorded insufficient
but considers that further evidence may be available, he may
remand the case for recording additional evidence.
(3) The Commandant may, after going through the record or
abstract of evidence including additional evidence, if any:-
(i) dismiss the charge after recording the reasons thereof[sic]; or
(ii) rehear the charge and award summary punishments; or
(iii) try the accused by a Summary Security Force Court where
he is empowered so to do:
Provided that the Commandant while convening a Court may
reframe the charge; or
(iv) apply to a competent officer or authority to convene a Court
for the trial of the accused."
17. The High Court inferred that "the incorporation of the
amendment demonstrates that at the relevant point of time, the
Commandant did not have the power to direct additional evidence to be
recorded". Yet, the High Court also observed that the 2011 amendment
to the BSF Rules 1969 could be of a clarificatory nature:
"At the same time, the amendment can be regarded to be
clarificatory in nature, in the sense that it was not required to be
specifically provided but was inherent to the general authority of
the Commandant; and the amendment has been brought by way
of abundant caution and to clarify the powers of the Commandant
instead of conferring any new authority unto such officer."
However, the High Court declined to inquire further into this line
of interpretation on the ground that "there is no submission which has
been put forth by either side to throw any light on the relevant provision".
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On this ground, the Division Bench held that the view of the Single
Judge "appears to be a possible view" and does not call for interference.
The legal position needs to be analysed.
18. Rule 48 of the BSF Rules 1969 provides for the preparation of
a record of evidence:
"48. Record of evidence.- (1) The officer ordering the record
of evidence may either prepare the record of evidence
himself or detail another officer to do so.
(2) The witnesses shall give their evidence in the presence of the
accused and the accused shall have right to cross-examine all
witnesses who give evidence against him:
Provided that where statement of any witness at a court of inquiry
is available, examination of such a witness may be dispensed with
and the original copy of the said statement may be taken on record.
A copy thereof shall be given to the accused and he shall have the
right to cross-examine if he was not afforded an opportunity to
cross -examine the witness at the Court of Inquiry.
(3) After all the witnesses against the accused have been
examined, he shall be cautioned in the following terms; "You may
make a statement if you wish to do so, you are not bound to make
one and whatever you state shall be taken down in writing and
may be used in evidence." After having been cautioned in the
aforesaid manner whatever the accused states shall be taken down
in writing.
(4) The accused may call witnesses in defence and the officer
recording the evidence may ask any question that may be
necessary to clarify the evidence given by such witnesses.
(5) All witnesses shall give evidence on oath or affirmation:
Provided that, no oath or affirmation shall be given to the accused
nor shall he be cross-examined.
(6) (a) The statements given by witnesses shall ordinarily be
recorded in narrative form and the officer recording the evidence
may, at the request of the accused, permit any portion of the
evidence to be recorded in the form of question and answer.
(b) Witnesses shall sign their statements after the same have been
read over and explained to them.
UNION OF INDIA AND ORS. v. MUDRIKA SINGH
[DR. DHANANJAYA Y CHANDRACHUD, J.]
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(6A) The provisions of section 89 of the Act shall apply for
procuring the attendance of the witnesses before the officer
preparing the Record of Evidence.
(7) Where a witness cannot be compelled to attend or is not
available or his attendance cannot be procured without an undue
expenditure of time or money and after the officer recording the
evidence has given a certificate in this behalf, a written statement
signed by such witness may be read to the accused and included
in the record of evidence.
(8) After the recording of evidence is completed the officer
recording the evidence shall give a certificate in following form :-
"Certified that the record of evidence ordered by...
..Commandant... .....................................................was made
in the presence and hearing of the accused and the provisions of
rule 48 have been complied with".
(emphasis supplied)
19. Rule 48 of the BSF Rules 1969 clarifies that an officer ordering
the RoE may either prepare it himself or detail any officer to do so. The
witnesses have to give their evidence in the presence of the accused
who has a right to cross-examine them. The accused may call witnesses
in defence. An officer recording the evidence is empowered under subrule (4) of Rule 48 to ask a question that may be necessary to clarify the
evidence given by a witness. It is on the basis of the RoE (or the abstract
of evidence, as the case may be) that the Commandant is empowered to
take the actions which are referred to in the unamended sub-rule (2) of
Rule 51, as it then stood. Under Rule 51(2) which was applicable then,
the Commandant was empowered to dismiss the charge; re-hear the
charge and award one of the summary punishments; try the accused by
SSFC; or apply to a competent officer or authority to convene a court
for the trial of the accused.
20. The unamended sub-rule (2) of Rule 51, as was applicable to
the facts of the present case, cannot be construed to impose a prohibition
on the Commandant to seek clarification, and for that purpose of ordering
an additional RoE, to facilitate or aid the further processing of the case.
Rule 51(2) does not contain any such prohibition. On the contrary, subrule(1) to Rule 48 indicates that the officer ordering the RoE may either
prepare an RoE himself or detail another officer to do so. Sub-rule(4) to
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Rule 48 empowers the officer to ask any question that may be necessary
to clarify the evidence. If such a power is conferred upon the officer
ordering the RoE while preparing the RoE himself, it would follow by
necessary implication, that such a power is available to the Commandant
even when the RoE is ordered to be prepared by another officer. The
purpose of seeking such a clarification is to facilitate the emergence of
the truth as regards the genesis of an incident which is the subject matter
of the enquiry. The mere fact that a specific provision empowering the
Commandant to call for further evidence was introduced in 2011 cannot
result in the conclusion that absent such a power being expressly
incorporated, the power did not vest in the Commandant.
21. An amendment to a statute or to statutory rules may often be
clarificatory in nature. It is clarificatory in the sense that it expressly
recognizes a power that already vests in the authority. In those
circumstances, when an amendment is purely clarificatory or declaratory
in nature, it is deemed to operate retrospectively.10 For instance, a
Constitution Bench in Shyam Sunder v. Ram Kumar11 held that an
amending act or a declaratory act need not explicitly mention its
declaratory nature to be operative retrospectively. Speaking on behalf
of the Constitution Bench, Justice V N Khare (as he then was) noted:
"39. Lastly, it was contended on behalf of the appellants that the
amending Act whereby new Section 15 of the Act has been
substituted is declaratory and, therefore, has retroactive operation.
Ordinarily when an enactment declares the previous law, it requires
to be given retroactive effect. The function of a declaratory
statute is to supply an omission or to explain a previous
statute and when such an Act is passed, it comes into effect
when the previous enactment was passed. The legislative
power to enact law includes the power to declare what was the
previous law and when such a declaratory Act is passed, invariably
it has been held to be retrospective. Mere absence of use of
the word "declaration" in an Act explaining what was the
law before may not appear to be a declaratory Act but if the
UNION OF INDIA AND ORS. v. MUDRIKA SINGH
[DR. DHANANJAYA Y CHANDRACHUD, J.]
10 G P Singh, Principles of Statutory Interpretation (13th edn, 2012); Commissioner of
Income Tax v. Vatika Township, (2015) 1 SCC 1, para 32 (Constitution Bench);
Ghanshyam Mishra and Sons v. Edelweiss Asset Reconstruction Company, 2021
SCC OnLine SC 313 (three-judge Bench)
11 (2001) 8 SCC 24
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court finds an Act as declaratory or explanatory, it has to
be construed as retrospective. Conversely where a statute
uses the word "declaratory", the words so used may not be
sufficient to hold that the statute is a declaratory Act as words
may be used in order to bring into effect new law."
(emphasis supplied)
In Zile Singh v. State of Haryana12, Chief Justice R C Lahoti,
speaking for a three-judge bench elaborated on the principle of
retrospective operation applicable to clarificatory statutes thus:
"13.... Unless there are words in the statute sufficient to show
the intention of the legislature to affect existing rights, it is deemed
to be prospective only - "nova constitutio futuris formam
imponere debet non praeteritis" - a new law ought to regulate
what is to follow, not the past. (See Principles of Statutory
Interpretation by Justice G.P.